WHY FILMMAKERS SHOULD REGISTER THEIR SCRIPTS
WITH THE U.S. COPYRIGHT OFFICE
By John Cones, Attorney
When independent filmmakers come to me for help with investor financing of their film projects, in situations where they are seeking to raise money from passive investors, we typically are preparing a private placement offering memorandum (PPM), and I provide them with what I call a “disclosure checklist”. It is a list of the items of information, based on U.S. Securities and Exchange Commission (SEC) disclosure guidelines, that I need them to provide to me so that I can properly prepare the PPM. As you may know the SEC’s anti-fraud rule applies to all securities offerings (i.e., passive investor financing). The anti-fraud rule requires that all material aspects of the transaction be disclosed (i.e., put in writing and given to prospective investors before they invest), that no material information be omitted and that everything stated in writing be disclosed in a manner that is not misleading.
One among many items of information I routinely ask for is the date of U.S. Copyright Office registration for the script on which the movie is to be based, along with the registration number. Such information is material to these investor financing transactions, and is a way of demonstrating to prospective investors that the filmmakers are conducting themselves in a business-like manner (i.e., they are taking care of the underlying rights). Occasionally, a filmmaker will ask if script registration with the Writers Guild of America, West (WGAW) will suffice, and my unequivocal answer is “No”. The WGAW script registration service does not provide or enhance most of the valuable rights associated with copyright registration for a script, and thus WGAW script registration alone is not enough. In addition, WGAW registration is partly redundant, and I see no good reason why any filmmaker should both pay to register with the WGAW and with the U.S. Copyright Office. Here are my reasons in support of this position:
1. E&O Carriers – Registration of a script with the U.S. Copyright Office is typically required by errors and omissions insurance carriers, and distributors typically require that producers obtain E&O insurance, so if you want your production insured and distributed, the script and film will need to be registered with the U.S. Copyright Office.
2. Screen Actors Guild – If you want to use SAG actors, SAG will require a copy of the U.S. Copyright Office registration and receipt for your script’s registration.
3. Distributors – Copyright registration is typically required by film distributors, so again, if you want your film distributed, you’ll have to register the script and film with the U.S. Copyright Office.
4. U.S. Customs Service – Registration allows the copyright owner to record registration with the U.S. Customs Service for protection against the importation of infringing copies.
5. Protecting Your Rights Through Litigation – If you want to file an infringement lawsuit in court, registration with the U.S. Copyright Office is required for works of U.S. origin.
6. Plaintiff’s Presumption – If registration occurs before or within 5 years of publication, courts start with the presumption that the copyright is valid and all facts in the certificate are correct. This presumption gives a significant advantage to the plaintiff in a copyright infringement lawsuit.
7. Statutory Damages and Attorney Fees – If copyright registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner. This makes it easier and more likely that you would be able to hire an experienced copyright litigator to pursue the copyright infringement case on your behalf.
Note that the errors and omissions insurance carriers, the Screen Actors Guild, the film distributors, the U.S. Customs Office and the courts do not ask for a record of script registration with the WGAW. They all require script’s to be registered with the U.S. Copyright Office.
Nevertheless, when I was teaching entertainment law and film finance courses at several film schools in Los Angeles, I would ask my students what the rest of the faculty was advising them to do with respect to script registration. I was told repeatedly that these faculties (mostly made up of working film industry professionals, although few attorneys) consistently recommended registration with the WGAW. So I went to the WGAW Registry website looking for good reasons to support this position. Here’s what I found.
In its introductory material to the Writers Guild of America, West Registry site, the WGAW refers to its services as “the official script and screenplay registration service of the Writers Guild of America, West and world's number one intellectual property service.” The WGAW continues, stating:
“Since 1927, the Writers Guild of America, West Registry has been the industry standard in the creation of legal evidence for the protection of writers and their work. When you register your script prior to submitting it to agents, managers, or producers, you document your authorship on a given date should there be unauthorized usage.”
The introductory material continues stating:
“The WGA, West is the home to nearly 12,000 of Hollywood's leading TV and screenwriters, but you do not need to be a WGAW member to use this vital Guild service. Registration can be used as a supplement to a U.S. copyright, and it's fast, easy and convenient to register online.”
So, I raise the following questions with regard to this service and the WGAW’s promotional rhetoric:
Is the WGAW’s claim that its registration service is “official” a good reason to register with the WGAW? No, it is not.
Is the WGAW’s claim that its registration service is the “world’s number one intellectual property service” a good reason to register with its service? No, unless you are the kind of person who believes you should do something because a lot of other people are doing the same thing.
Is the statistic that the WGAW cites regarding “12,000 . . . screenwriters” using their service a good reason to do so? No, that’s a repeat of the above-noted “follow the herd” argument and mentality.
Is the WGAW Registry’s use of the word “vital” a good reason to use its service? No, that’s just so much self-promotion.
Is the WGAW Registry’s claim that script registration with its service useful as a “supplement to a U.S. copyright” a good reason to register with its service? No, unless you just want to duplicate time, expense and effort.
Is the WGAW Registry’s claim that its service is “fast, easy and convenient to register online” a good reason to register your script there? This may be the primary reason why the WGAW’s script registration facility exists – because it is easier and cheaper than registering with the U.S. Copyright Office. Nevertheless, it’s still not a good reason to register a script with the WGAW, because the screenwriter who does so will be giving up valuable legal rights conferred by registration with the U.S. Copyright Office in exchange for the WGAW’s “fast, easy and convenient” registration – not really a fair exchange.
Thus, most of what the WGAW states about registering a script with its service, is nothing more than smoke and mirrors, just so much Hollywood fluff. The only credible reason to register a script with the WGAW based on its own literature is because it is “fast, easy and convenient”. It’s also probably a little less expensive than registration with the U.S. Copyright Office.
So, here’s the bottom line: First, if you think that saving a little money, time and effort is worth giving away valuable legal rights when you don’t register with the U.S. Copyright Office, you probably don’t deserve those rights. And, as a consequence, most informed investors won’t invest in your project, you won’t be able to get E&O insurance, you won’t be able to get your film distributed and you may not be able to hire an experienced copyright litigator to protect your ownership interests, if needed, in a court of law. Secondly, if you think that using WGAW registration as a supplement to registration with the U.S. Copyright Office is a good idea, it’s not. You’re just wasting your time and money in a partly duplicative effort.
My suggestion is that the WGAW stop confusing screenwriters with its promotional rhetoric and stop maintaining this secondary registration facility altogether. No one can persuasively argue that it provides a more effective legal basis for protecting the works of screenwriters. Thus, the only remaining justifications for its existence is that it represents another revenue stream for the WGAW, and it saves a little, time, money and effort for screenwriters who only register their scripts with the WGAW, and are not well informed enough to realize that their ability to protect their scripts from copyright infringement is thereby severely diminished. If screenwriters find it too difficult or expensive to register with the U.S. Copyright Office, the WGAW should work with the Copyright Office to improve the federal government’s script registration system, not try to duplicate it with a less effective system.
Have a nice day!
So yes, if we take this reasoning to its logical conclusion, what I’m saying here is that the WGAW and 12,000 screenwriters are wrong! Screenwriters need to stop following the herd and take the necessary steps to protect their legal rights by registering their scripts with the U.S. Copyright Office, and not the WGAW. You should quit listening to the WGAW fluff and propaganda and start listening to your entertainment attorney. Ultimately, script registration with the WGAW is nothing more than a money-making scheme for the WGAW and leaves screenwriters unprotected. The WGAW really ought to just get out of the business of script registration and stay with what the guild does best (i.e., representing the interests of its screenwriter members in collective bargaining with film industry producers).
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